Citation Nr: 1435061
Decision Date: 08/06/14 Archive Date: 08/20/14
DOCKET NO. 08-01 533 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia
THE ISSUES
1. Entitlement to service connection for bilateral hearing loss.
2. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Davitian, Counsel
INTRODUCTION
The Veteran served on active duty with the United States Army from May 1966 to June 1969.
These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Roanoke, Virginia, Regional Office (RO) of the United States Department of Veterans Affairs (VA).
In May 2010, December 2011 and May 2012, the Board remanded this case for further evidentiary development.
A May 2012 VA medical opinion provides that the Veteran's tinnitus was as likely as not caused by active duty noise exposure. The examiner made a similar statement in a January 2012 VA examination report. Thus, the issue of entitlement to service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013).
The issue of service connection for hypertension, to include as secondary to service-connected PTSD, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDING OF FACT
There has been no demonstration by competent medical evidence or competent and credible lay evidence that the Veteran's bilateral hearing loss is related to his active duty.
CONCLUSION OF LAW
Bilateral hearing loss disability was not incurred in or aggravated by service, and may not be presumed (as an organic disease of the nervous system) to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION
Notice and Assistance
VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in a March 2007 letter. Accordingly, the duty to notify has been fulfilled.
With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA medical records, private medical records and the transcript of a February 2010 hearing before the undersigned Veterans Law Judge. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record.
The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. The AOJ has complied with the Board's May 2012 remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Among other things, VA obtained the audiogram associated with the Veteran's August 2002 VA audiological consultation.
The May 2012 Board remand found that earlier VA examinations were inadequate. As a result, a VA medical opinion was obtained in June 2012. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the June 2012 VA medical opinion obtained in this case is adequate, as it reflects a review of the Veteran's claims file (conducted by the same examiner in connection with a January 2012 VA examination), considers all of the pertinent evidence of record and the statements of the Veteran, and provides a rationale for the opinion offered. Thus, there is adequate medical evidence of record to make a determination in this claim, and additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008).
The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.
Legal Analysis
With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.
The Veteran asserts that he has hearing loss due to active duty.
In general, a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d).
Certain chronic diseases, including sensorineural hearing loss (as an organic disease of the nervous system), may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a).
The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385 (2013).
The absence of in-service evidence of hearing loss, including one meeting the requirements of 38 C.F.R. § 3.385, is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Hensley also provides that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between a Veteran's in-service exposure to loud noise and his current disability.
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b).
Based on a thorough review of the evidence, the Board finds that the preponderance of the evidence is against service connection for bilateral hearing loss. The evidence does not show that the Veteran's bilateral hearing loss is related to his active duty.
The Veteran's service treatment records include a complaint of his ears feeling plugged up in April 1967; a report of having ringing in his ears for a long time in June 1967; a complaint of his ears feeling stopped up in December 1968; the removal of a sebaceous cyst behind his left ear in April 1969; an April 1969 report of medical history noting ear, nose, or throat trouble; and a complaint of burning ears in June 1969.
The Veteran's April 1969 separation examination provides audiogram hearing threshold levels of "zero" at the frequencies of 500, 1000, 2000 and 4000 Hertz bilaterally. A January 2012 VA examination report questions the validity of this separation audiometric data. However, the determinative VA medical opinion of June 2012, discussed below, does not rely on the separation audiogram results. As a result, the Board finds that the June 2012 VA medical opinion is not weakened by the questionable separation audiometric data.
The post-service evidence is negative for complaints, symptoms, findings or diagnoses of hearing loss for many years after the Veteran's active duty. Thus, presumptive service connection is not warranted. 38 C.F.R. §§ 3.307 and 3.309. Moreover, a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).
VA examination reports reflect that the Veteran currently has bilateral hearing loss for VA purposes. 38 C.F.R. § 3.385.
The June 2012 VA medical opinion provides that the Veteran's hearing loss was less likely than not (less than 50/50 probability) caused by or a result of any incident of the Veteran's military service. The examiner explained that with regard to the Veteran's complaint of being "plugged/stopped up" in April 1967 and 1968, these occurrences were both temporary symptoms. The Veteran's report of "burning ears" in 1969 was also a temporary condition. The Veteran's removal of a sebaceous cyst in April 1969 had no impact on his hearing. While ENT trouble was checked on the April 1969 examination, there was no specific mention of what that trouble was indicative of. The examiner also explained that all of the above conditions were indicative of conductive hearing loss and the Veteran's current loss was sensorineural in nature.
The examiner also commented on the tinnitus noted during active duty, as requested by the Board's May 2012 remand. The examiner stated that in her opinion the Veteran's tinnitus was as likely as not caused by active duty noise exposure. She made a similar statement in a January 2012 VA examination report.
The Board finds that the June 2012 VA medical opinion constitutes probative evidence against service connection for hearing loss. It is based on a review of the Veteran's medical history as provided by his service treatment records. The examiner explained her opinion by referring to the Veteran's in-service medical history, the type of in-service hearing conditions (conductive) and the type of current hearing loss (sensorineural). The examiner analyzed these factors in terms of medical principles and her own expertise. This fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale. See Bloom v. West, 12 Vet. App. 185 (1999); Prejean v. West, 13 Vet. App. 444 (2000).
A June 2014 brief submitted on the Veteran's behalf asserts that the [January and June 2012] VA examiner failed to address the fact that the Veteran's separation hearing test was a "Whisper test." However, a review of the April 1969 separation examination report reflects that a Maico audiogram was conducted. Nevertheless, the VA examiner did not base the opinion on the type of examination that was conducted at separation.
The Board finds it significant that the record before the Board does not include any medical evidence linking the Veteran's current hearing loss to his active duty or any incidents therein.
The Board recognizes the Veteran's statements made in support of his claim. The Veteran is competent to report having sustained acoustic trauma, and experienced certain symptoms, during active duty. Since his contentions are consistent with the circumstances of his service, such assertions are deemed to be credible. The Veteran is competent to provide testimony and statements concerning factual matters of which he has firsthand knowledge (i.e., experiencing or observing noise exposure during service and hearing loss during or after service). Barr, supra; Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Further, under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that his assertions are credible.
However, the Veteran's contentions that he incurred bilateral hearing loss during or as a result of active duty do not constitute medical evidence in support of his claim. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case (whether the Veteran's hearing loss is related to active duty) falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); Jandreau, supra (lay persons not competent to diagnose cancer). As a result, his assertions cannot constitute competent medical evidence in support of his claim.
In sum, the medical evidence demonstrates that the Veteran is not entitled to service connection for bilateral hearing loss. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).
ORDER
Service connection for bilateral hearing loss is denied.
REMAND
A preliminary review of the record indicates that the issue of service connection for hypertension, to include as secondary to service-connected PTSD, requires additional development.
The Veteran contends that his PTSD caused or aggravated his hypertension. See November 2011 brief. In this regard, secondary service connection may be granted for a disability which is proximately due to, the result of, or aggravated by an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).
A July 2012 VA medical opinion sets forth the medical opinion that the Veteran's hypertension was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner also provided the opinion that the Veteran's hypertension was not aggravated by his service-connected PTSD (less than 50 percent probability). However, the VA examiner failed to address whether the Veteran's service-connected PTSD caused the Veteran's hypertension. See 38 C.F.R. § 3.310; Allen, supra. The question of causation must be addressed on remand, with adequate reasons and bases provided by the VA examiner.
Accordingly, the case is REMANDED for the following action:
1. Forward the Veteran's claims folder to the examiner who provided the July 2012 VA medical opinion (or a suitable substitute if this individual is unavailable) for an addendum.
Following a review of the relevant evidence in the claims file, including the July 2012 VA medical opinion, the examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent likelihood or greater) that the Veteran's service-connected PTSD proximately caused his hypertension. All opinions expressed by the examiner must be accompanied by a complete rationale.
An additional examination of the Veteran should be scheduled only if deemed necessary to provide the requested opinion.
2. Then, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs